Author Meets Critics: "Judging Inequality"

Session Submission Type: Virtual Author meet critics

Session Description

This panel brings together experts on state supreme courts, political inequality, democratic theory, and comparative judicial politics to discuss Judging Inequality, a book written by James Gibson and Michael Nelson to be published in August 2021 by the Russell Sage Foundation Press. The roundtable discussion should be of interest to law and courts scholars of all stripes, as well as scholars of equality and political scientists outside of the subfield.

Drawing on an analysis of a newly created database of nearly 6,000 decisions made by over 900 judges on 50 state supreme courts over a quarter century, Judging Inequality seeks to assess the role these judges and courts have played when it comes to America’s inequality crisis. Social scientists have convincingly documented soaring levels of political, legal, economic, and social inequality in the United States. Missing from this picture of inequality, however, is any attention to the role of state law and courts in creating policies pertinent to ameliorating or exacerbating this rampant inequality. This omission is particularly notable because nearly all state constitutions contain provisions with significant potential implications for inequality, affecting such policy domains as educational equity and adequacy, LGBT rights, access to justice, and employment protections.

The book documents two ways that state judicial bodies have crafted politics relevant to inequality: through substantive policy decisions that fail to advance equality and by rulings favoring more privileged litigants (typically known as “upperdogs”). Two major sets of conclusions emerge from these analyses. First, whether policies and successful litigants favor inequality is a function of the ideologies of the justices serving on these high benches, the policy preferences of their constituents (the people of their state), and the institutional structures that determine who becomes a judge and who decides whether those individuals remain in office.

Perhaps more importantly, the authors reject the conventional theory that state supreme courts are minoritarian institutions that tend to protect minorities, privileged or not, from the wrath of majorities. Instead, the authors demonstrate that state supreme courts are remarkably majoritarian institutions, with ideological compositions that tend to mirror the dominant political coalition in their state at a given point in time. For this reason, state supreme courts are unlikely to stand as a powerful force against the rise of inequality in the United States, instead making decisions compatible with the preferences of political elites already in power, whatever they may be. At least at the level of the American state high courts, the myth of judicial independence truly is a myth. When it comes to political, legal, economic, and social inequality in the U.S., the state high courts do the bidding of the majority in their state and the governors and legislators they elect. That these institutions might independently protect against greater inequality in the American states is indeed a hollow hope.

Sub Unit

• Division 26: Law and Courts

Chairs

• James L. Gibson Washington University in St. Louis

• Michael J. Nelson The Pennsylvania State University

Presenters

• Peter Enns Cornell University

• Brandice Canes-Wrone Princeton University

• Herbert M. Kritzer University of Minnesota

• Ran Hirschl University of Texas at Austin